The Borkean Dilemma: Robert Bork and the Tension between Originalism and Democracy

As
a constitutional theorist, the late Judge Robert Bork was best known for his
advocacy of two major ideas: originalism and judicial deference to the
democratic process. In some cases, these two commitments may be mutually
reinforcing. But Judge Bork largely failed to consider the possibility that his
two ideals sometimes contradict each other. Yet it has become increasingly
clear that consistent adherence to originalism would often require judges to
impose more constraints on democratic government rather than fewer. The tension
between democracy and originalism is an important challenge for Bork’s
constitutional thought, as well as that of other originalists who place a high
value on democracy. We could call the trade-off between the two the “Borkean
dilemma.”

Part
I of this Essay briefly outlines Bork’s well-known commitments to both
originalism and judicial deference to the democratic process. Part II discusses
his failure to resolve the potential contradiction between the two. In Part
III, I explain why the tension between originalism and deference has become an
increasingly serious problem for originalists and briefly consider some
possible ways to resolve, or at least minimize, the contradiction. Some of
these theories have potential, especially the idea that many types of judicial
review might actually promote rather than undermine popular control of
government. Ultimately, however, none of them comes close to fully resolving
the conflict between originalism and democracy. The consistent originalist will
likely have to accept substantial constraints on democracy. The consistent
adherent of deference to the democratic process will have to reject judicial enforcement
of major parts of the original meaning of the Constitution.